Man Without Qualities

Wednesday, June 05, 2002

There Is Something About Conspiracies

Mark Riebling says in his OpinionJournal article: "To obtain a warrant from the court [under the Foreign Surveillance Intelligence Act of 1978 (FISA)] ... the attorney general cannot simply aver that the suspect belongs to a terrorist group. Rather, there must be "probable cause" that he has actually committed, or is conspiring to commit, a terrorist act. Since such evidence can seldom be gathered without some form of eavesdropping, FISA creates a classic Catch-22."

Mr. Adragna says that Mr. Riebling misstates FISA. But Mr. Riebling is not quoting FISA - he is paraphrasing FISA. Correctly.

FISA provides for the issuance of a search warrant where there is a showing to the court that "the target of the electronic surveillance is a foreign power or an agent of a foreign power." The "showing" must meet the "probable cause" standard of proof. As noted in a prior post, the now-famous memorandum of FBI Agent Rowley says: "I thought probable cause existed ("probable cause" meaning that the proposition has to be more likely than not, or if quantified, a 51% likelihood). "Probable cause" is NOT defined as a 51% likelihood - but Agent Rowley's observation is helpful and common.

The relevance of this provision of FISA to al Qaeda is that a "foreign power" includes foreign terrorist organizations - that is, it includes foreign terrorist conspiracies. In the case of al Qaeda and similar conspiracies the above provision may be restated as "the target of the electronic surveillance is a foreign terrorist conspiracy or an agent of a foreign terrorist conspiracy."

Being an "agent of a foreign terrorist conspiracy" is the same thing as conspiring through it to commit a terrorist act. The possibility of FISA applying to an "innocent agent" of a foreign terrorist conspiracy is a trivial intellectual puzzle to which no attention need be given at this point.

So the FISA standard can be informally restated in the circumstances relevant to foreign terrorists conspiracies such as al Qaeda as requiring a showing that it is more likely than not that the target "has actually committed, or is conspiring to commit, a terrorist act." As Mr. Riebling wrote.

Mr. Adragna offers other comments of similar depth in the post cited above. The reader is invited to evaluate those comments and reach his own conclusions - and to vote assiduously in November and thereafter.

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